According to the Minnesota State Court of Appeals, in the case of In the Matter of the Welfare of the Child of: E. A. C., Parent., A11-1562, Minn. Ct. App. (2012), a district court judge in the State of Minnesota must apply all subsections of 25 U.S.C. § 1912 (2006) when determining whether reuniting a child with a parent is in the child’s best interest under the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1916(a) (2006).
The Court of Appeals reversed and remanded a decision by an Aitkin County District Court which failed to consider all subsections of section 1912 when making a determination as to whether a biological mother’s petition to re-establish custody of her child is in the child’s best interest
Family law attorneys who may be dealing with a child of Native American descent should pay attention to this decision. In the case, the child was an enrolled member of the Mille Lacs Band of Objibwe. A Crow Wing County social worker was assigned to the child’s child-protection case and the child was removed from the care of his biological mother for what was the third time. The child had been diagnosed with disruptive behavior disorder, separation anxiety disorder, and questionable borderline intellect. In 2006, the appellant voluntary terminated her parental right to the child.
In 2008, the child was adopted through a case proceeding before the Aitkin County District Court. However, in December 2, 2009, the adoptive parent brought the child to Aitkin County Health and Human Services because the adoptive parent could no longer take care of him.
In 2010, Aitkin County Health sent notice to the biological mother that she could petition for return of custody of the child due the adoptive parents request to terminate her parental rights. The biological mother then petitioned for custody in March of 2011. Aitkin County intervened and filed a motion to dismiss the mother’s petition, essentially arguing that the issue had been previously decided and that the mother had no further legal right to custody of the child. Alternatively, Aitkin County essentially argued that the requirement of ICWA had already been litigated and, therefore, did not apply in the case before the Aitkin County District Court.
The court then held an evidentiary hearing at which the biological mother failed to appear. The court made a number of evidentiary findings and denied the mother’s petition, finding that she had failed to prove beyond a reasonable doubt that the returning of the child to her custody was in the child’s best interest. The court also found that it was not required to make findings pursuant to ICWA because such issues were litigated previously and that the case at hand was not one involving “continued custody” of the child by the mother.
The Indian Child Welfare Act
Citing ICWA, the court explained that:
Among the rights afforded Indian families under ICWA is the right of a biological parent to petition the court to have custodial rights restored if the parent’s child is subsequently adopted and the adoptive parent voluntarily terminates his or her parental rights. 25 U.S.C. § 1916. Specifically, section 1916(a) of ICWA provides that “whenever . . . the adoptive parents voluntarily consent to the termination of their parental rights to the child, a biological parent . . . may petition for return of custody and the court shall grant such petition unless there is a showing, in a 7proceeding subject to the provisions of section 1912 of this title, that such return of custody is not in the best interests of the child.” 25 U.S.C. § 1916(a) (emphasis added).
The Minnesota Court of Appeals found that the proceeding at hand was indeed one which invoked the requirements of ICWA. The court stated that the plain language of section 1916(a) requires that all provisions of section 1912 must be applied when a petition for return of child custody is challenged. In the case at hand, the Aitkin County District Court failed to follow the plain language of the statute. Therefore, it was reversed and remanded.
From my review of the case and the pertinent language of the statute, it is clear that the court failed to follow the federal law. This is perhaps not surprising given the possibility that the District Court may not be faced with ICWA and it’s variations often. As I stated, Apple Valley MN family law attorneys should be aware of this opinion if they are ever faced with a situation involving the custody and care of a child of Native American descent.
